Cops don’t need a warrant to see your e-mail—but they might soon

New bill introduced that would require warrants, but history says it won't pass.

A new bill introduced today in the US House of Representatives seeks to require warrants before police can trawl through your e-mail or track your cell phone, reports CNET. The legislation is backed by several technology companies, including Apple, Google, Microsoft, and Twitter. But given the government's history with privacy bills, it faces a high chance of getting blocked by the Department of Justice.

The bill was introduced by Representative Zoe Lofgren (D-CA) and would require officers to get a warrant before accessing e-mail or location information. Access to these data types is a notorious gray area in US courts.

In August, the US Circuit Court of Appeals for the Sixth Circuit ruled that law enforcement officials were within their right to access the location data from a man's cellphone without a warrant. The basis for this ruling was the Stored Communications Act, which states authorities may not access the content of communications, but are allowed to see where and to whom they went. Prosecutors have been using this law to justify access to location data for some time, but the interpretation has been increasingly called into question by civil liberties groups.

Lofgren's bill would amend the Electronic Communications Privacy Act that went into effect in 1986—the olden cellular days, before even Zach Morris had GPS in his phone. Such bills in the past have been blocked by the Department of Justice on the grounds that making access to information in the cloud and on cellular networks would make police investigations more difficult; this one may face a similarly unsuccessful road.

Casey Johnston
Casey Johnston is the former Culture Editor at Ars Technica, and now does the occasional freelance story. She graduated from Columbia University with a degree in Applied Physics. Twitter@caseyjohnston

Anyway, I still don't understand it. Why can't, say Google, just deny the police access to email without a warrant?

edit: Or to make a, kinda, car analogy (win). If the police stops me, and have reason to believe I have drugs in my car, they don't need a warrant to search it, they just can. But I don´t have to help them though.

To carry that on to Google, OK, so the police can look through peoples email without a warrant. But how exactly are they going to do this without Googles help? Can't Google just acknowledge that the police can, but not help them do this? I assume the mail is encrypted etc.

The DHS installed their own private connections to the Google network and email servers a long time ago, therefore Google wouldn't be involved for retrieving the data. DHS did this on hundreds of internet servers and routers a long time ago - they no longer need the participation of the network/server owner to capture data.

You car search analogy doesn't work because your car is under your complete and private control, therefore a LEO needs a warrant to obtain access. True, you have no obligation to provide assistance, so they'll just impound you and the vehicle to sort out later when they do get a warrant.

Now, all those internet data bits flying around outside your control (beyond the confines of your private property) are "in the wild", and DHS can capture them whenever they want. If they capture something that requires a warrant, they'll get one in about 5 minutes from whomever is serving on the FISA bench that day. You'd be amazed at how slim their excuse can be.

Lastly, if you want your business encrypted, you do that yourself - nobody is going to do it for you. And if you like the idea of frustrating a DHS agent with a FISA warrant, use a randomized 2048-bit encryption key that's never seen anything other than a flash drive personally given to someone you feel worthy of having it. If they don't know what that is, find someone else that does.

But my connection to Gmail is encrypted, how is anyone evesdropping on that?

Yeah, I do have Truecrypt on my harddrive. And I have the feeling I'll forget the password if I am put under any form of stress... (I know I ought to have a hidden partition for deniability, but I'm not liable to being arrested for anything, so big deal).

Anyway, I still don't understand it. Why can't, say Google, just deny the police access to email without a warrant?

edit: Or to make a, kinda, car analogy (win). If the police stops me, and have reason to believe I have drugs in my car, they don't need a warrant to search it, they just can. But I don´t have to help them though.

To carry that on to Google, OK, so the police can look through peoples email without a warrant. But how exactly are they going to do this without Googles help? Can't Google just acknowledge that the police can, but not help them do this? I assume the mail is encrypted etc.

They need probable cause if The Constitution is to be followed. There is also a precedent in Terry v. Ohio which says that there has to be a sign that a person in the car is involved in criminal activity.

On a personal note, I moved to U.S. about 7 years ago from Ukraine. It is really strange to see this kind of activity going on in both countries because U.S. is supposed to be free and protected, yet, this behavior is more reminiscent of a very controlled state.

On a personal note, I moved to U.S. about 7 years ago from Ukraine. It is really strange to see this kind of activity going on in both countries because U.S. is supposed to be free and protected, yet, this behavior is more reminiscent of a very controlled state.

Welcome to post 9/11 hyper paranoid america. Joe Mccarthy revived in true form. If you do not comply it is commonly believed that "you obviously have something to hide"

Don't rely on corporations or the government to look out for your rights in the digital age. They have their own motives to serve. If you care about individual rights, donate to the EFF in whatever country you reside. You're _already_ donating to corporations and government via commerce and taxes, so don't be stingy with the very small set of people who are trying to look out for you.

They need probable cause if The Constitution is to be followed. There is also a precedent in Terry v. Ohio which says that there has to be a sign that a person in the car is involved in criminal activity.

That's not what I mean. How are they going to get access to, say, Gmail without the assistance of Google themselves? Not needing a warrant doesn't mean anything if they can't get access to the mail without help.

They need probable cause if The Constitution is to be followed. There is also a precedent in Terry v. Ohio which says that there has to be a sign that a person in the car is involved in criminal activity.

That's not what I mean. How are they going to get access to, say, Gmail without the assistance of Google themselves? Not needing a warrant doesn't mean anything if they can't get access to the mail without help.

I don't have a lot of experience in the legal department, but couldn't the government charge Google with obstruction of justice for blocking access to a potential criminal's information?

On a personal note, I moved to U.S. about 7 years ago from Ukraine. It is really strange to see this kind of activity going on in both countries because U.S. is supposed to be free and protected, yet, this behavior is more reminiscent of a very controlled state.

Welcome to post 9/11 hyper paranoid america. Joe Mccarthy revived in true form. If you do not comply it is commonly believed that "you obviously have something to hide"

Fearmongering always works when you are talking about the many Sheeple.They will gladly lose their Rights when you use Fearmongering or the old Standard "Save The Children" .

They need probable cause if The Constitution is to be followed. There is also a precedent in Terry v. Ohio which says that there has to be a sign that a person in the car is involved in criminal activity.

That's not what I mean. How are they going to get access to, say, Gmail without the assistance of Google themselves? Not needing a warrant doesn't mean anything if they can't get access to the mail without help.

I don't have a lot of experience in the legal department, but couldn't the government charge Google with obstruction of justice for blocking access to a potential criminal's information?

I don't know. I am genuinely curious as to how this actually works out, as it seems to me that even when a warrant isn´t required, the host would still need to actually provide access for the police to be able to view anything.

Are they required to do so, when there is no warrant present? If they're not, why would they do so?

They need probable cause if The Constitution is to be followed. There is also a precedent in Terry v. Ohio which says that there has to be a sign that a person in the car is involved in criminal activity.

That's not what I mean. How are they going to get access to, say, Gmail without the assistance of Google themselves? Not needing a warrant doesn't mean anything if they can't get access to the mail without help.

I don't have a lot of experience in the legal department, but couldn't the government charge Google with obstruction of justice for blocking access to a potential criminal's information?

I don't know. I am genuinely curious as to how this actually works out, as it seems to me that even when a warrant isn´t required, the host would still need to actually provide access for the police to be able to view anything.

Are they required to do so, when there is no warrant present? If they're not, why would they do so?

DHS hooked in to the net behind the encryption - they don't need Google's keys when they're already in the house. IOW, DHS sniffers have unfettered access to anything flowing through Google's veins. Again, if you want your private business to stay private, encrypt it yourself. If Google internally encrypts the payload again, fine, but they'll decrypt it before it leaves their servers - your payload remains locked until received and unlocked by the intended recipient.

But my connection to Gmail is encrypted, how is anyone evesdropping on that?

Yeah, I do have Truecrypt on my harddrive. And I have the feeling I'll forget the password if I am put under any form of stress... (I know I ought to have a hidden partition for deniability, but I'm not liable to being arrested for anything, so big deal).

Google's client email is only encrypted within their system(s) - elsewhere it's in the wild. I don't encrypt all my email, but when I do, there are only two other people on this planet who have copies of my keys.

Drive encryption is recommended for anything that can walk out the door and end up in another system as a secondary drive - without the proper credentials, the drive is useless. A number of enterprise systems use Check Point, and I think Truecrypt is also good for stand-alone use.

I don't understand how the Department of Justice can block bills. Is Congress not the highest legislative body?

There are ~80 senators who won't vote for anything the DoJ opposes because they fear losing re-election for being "soft on crime/terrorism."

I Want to add some sayings to this "fear" part.

A little bite more detail on what DOJ could do to punished those who have opposed them, is to intersected and blocked their cell phone calls and emails. The politicians need these communication tools for their funding. The money for their donations will not be in their bank accounts. We all know without the money, you are not getting a chance to get re-elected. To make this more clearer of what the DOJ is doing to their foes. The DOJ is using terrorism to fight terrorists. except for that, the politicians are not terrorists. But the DOJ act on upon anyway.

"The hell with the politicians, I got the power. I want to make you all live in fear."

Does this sounds more like a dictatorship to you?

To me, it is.

Cops have been doing this to their marks. "Marks" supposed to be the suspects on crimes. But since they've not committed any crimes, so the cops called them the - marks.

It's all about job security. The more marks on the streets the better secure of their high paying jobs. This is the dog eats dog world.

You'd think the Constitution would already be enough for that, because e-mail is just like regular mail, and they shouldn't be able to just scour through e-mails at will, but apparently these days law enforcement doesn't think the Constitution is worth more than the paper it's written on.

On a personal note, I moved to U.S. about 7 years ago from Ukraine. It is really strange to see this kind of activity going on in both countries because U.S. is supposed to be free and protected, yet, this behavior is more reminiscent of a very controlled state.

Welcome to post 9/11 hyper paranoid america. Joe Mccarthy revived in true form. If you do not comply it is commonly believed that "you obviously have something to hide"

Glad I'm not the only one who thinks America is super paranoid. Terrorism only works if you're being terrified. And clearly be sacrificing our freedoms to protect us from that, we are.

They need probable cause if The Constitution is to be followed. There is also a precedent in Terry v. Ohio which says that there has to be a sign that a person in the car is involved in criminal activity.

That's not what I mean. How are they going to get access to, say, Gmail without the assistance of Google themselves? Not needing a warrant doesn't mean anything if they can't get access to the mail without help.

I don't have a lot of experience in the legal department, but couldn't the government charge Google with obstruction of justice for blocking access to a potential criminal's information?

I don't know. I am genuinely curious as to how this actually works out, as it seems to me that even when a warrant isn´t required, the host would still need to actually provide access for the police to be able to view anything.

Are they required to do so, when there is no warrant present? If they're not, why would they do so?

I'm neither a lawyer, nor a policeman, nor a member of the ACLU... and from that position of vast ignorance, if a policeman contacted me and said:

"there is an ongoing investigation, you must comply with my lawful order (there is no law against it) or I will charge you with obstruction of justice"

I would probably comply, unless I had a strong reason not to, and the ability to hire a lawyer.

Such bills in the past have been blocked by the Department of Justice on the grounds that making access to information in the cloud and on cellular networks would make police investigations more difficult

Boo Fucking Hoo.

Do your jobs a bit better then...Don't rely on just trawling through peoples private lives until you find something incriminating or embarrassing....

Seems like this is just going to make email tantamount to snail mail. Law Enforcement can look at the envelope (see where it came from and where it is going) but not see the contents without a warrant.

Granted, getting a FISA warrant is probably easier than getting the clap from a house of ill repute, but can't we at least pretend that the Constitution still means something?

Such bills in the past have been blocked by the Department of Justice on the grounds that making access to information in the cloud and on cellular networks would make police investigations more difficult...

Uh, yeah, that's the point. In fact, the entire Constitution was formed around the belief of limiting government's power. It's supposed to be difficult.

This bill will not pass until the e-mail and GPS information of an actual Congressman is used against him or her. Just like video rental information was used during the Bork confirmation process, leading to video rental information being legislated into confidentiality, nothing will change until Congress gets a taste of the Kool-Aid.

"You want to look at my email? Have you a warrant?"[time passes]"Ah, yes! A warrant. Here you go!"

"Scrambled? Nooo. Nooo... I don't think so. It might be encrypted, but it's not scrambled."[time passes]

"The encryption key? Have you a warrant?"[time passes]"Ah, yes! A warrant. Here you go!"

"Scrambled? Nooo. Nooo... I don't think so. Probably the thumb drive where I thought I put the key has no data at all. I certainly wouldn't have encrypted the key to my encryption, would I?"[time passes]

"You want to look at my email? Have you a warrant?"[time passes]"Ah, yes! A warrant. Here you go!"

"Scrambled? Nooo. Nooo... I don't think so. It might be encrypted, but it's not scrambled."[time passes]

"The encryption key? Have you a warrant?"[time passes]"Ah, yes! A warrant. Here you go!"

"Scrambled? Nooo. Nooo... I don't think so. Probably the thumb drive where I thought I put the key has no data at all. I certainly wouldn't have encrypted the key to my encryption, would I?"[time passes]